The bills would amend the Code of Criminal Procedure and
Public Act 53 of 1979
(which prohibits access to computers for certain fraudulent purposes and the
intentional and unauthorized access to, and alteration, damage, and destruction of
computers) to include violations of Public Act 53 in the Code's sentencing
guidelines and impose new penalties for certain violations of that Act.

House Bill 5184 (S-1) would include in the sentencing
guidelines criminal offenses
contained in Public Act 53 of 1979, along with new penalties proposed by House
Bill 5186 (S-1) for some of those offenses. Unlawful access to a computer,
computer system, or computer program would be a Class E property felony with a
statutory maximum of five years' imprisonment. Unlawful access with a prior
conviction would be a Class D property felony with a 10-year maximum. The bill
also would establish the class and statutory maximum for using a computer to
commit a crime, according to the maximum term of imprisonment applicable to
the crime committed, as shown in Table 1.

Table 1

Maximum Term of Crime

(Years)

Felony

Class

Statutory

Maximum

At least 1 but less than 2

G

2

At least 2 but less than 4

F

4

At least 4 but less than 10

D

7

At least 10 but less than
20

C

10

At least 20 or life

C

20

The sentencing court would have to determine the offense
category, offense
variable level, and prior record level based on the underlying offense.

House Bill 5185 (S-2) would amend Section 6 of Public
Act 53 of 1979, which
prohibits the use of a computer or a computer program, system, or network to
commit a crime. The bill also would prohibit computer use to attempt, conspire,
or solicit another person to commit a crime. The bill specifies that Section 6
would not prohibit a person from being convicted of any other violation, including
the underlying offense. Section 6 would apply regardless of whether the person
was convicted of the underlying offense.

House Bill 5186 (S-1) would revise penalties for a
violation of Public Act 53, which
currently are graduated and based on the "aggregate amount" involved and prior
convictions. Under the bill, those penalties would apply only to a violation of
Section 4 of the Act, which prohibits a person from intentionally gaining access or
causing access to be made to a computer or a computer program, system, or
network "to devise or execute a scheme or artifice with the intent to defraud or to
obtain money, property, or a service by a false or fraudulent pretense,
representation, or promise".

Section 5 of the Act prohibits a person from gaining access or
causing access to be
made to a computer or computer program, system, or network to acquire, alter,
damage, delete, or destroy property or inserting or attaching or knowingly
creating the opportunity for an insertion or attachment of a set of instructions or a
computer program into a computer or computer program, system, or network,
that is intended to acquire, alter, damage, delete, disrupt, or destroy property. A
violation of Section 5 would be a felony punishable by up to five years'
imprisonment and/or a maximum fine of $10,000. If the offender had a prior
conviction, the felony would be punishable by up to 10 years and/or $50,000.

The bill would establish penalties for a violation of Section 6
(described in the
summary of House Bill 5185 (S-2), above) based upon the maximum term of
imprisonment for the underlying crime, as shown in Table 2.

Table 2

Maximum Term of the

Underlying Crime

(years)

Proposed

Maximum Fine

Proposed

Maximum Term

(years)

Misdemeanor or Felony

1 or less

$5,000

1

At least 1 but less than 2

5,000

2

At least 2 but less than 4

5,000

4

Felony

At least 4 but less than 10

5,000

7

At least 10 but less than
20

10,000

10

At least 20 or life

20,000

20

If the underlying crime were a misdemeanor punishable by one
year or less, the
violation of Section 6 would be a misdemeanor. The remaining violations would
be felonies. A court could order consecutive terms.

The bill also would authorize a sentencing court to order a
person convicted of a
Public Act 53 violation to reimburse the State or a local unit for expenses incurred
in relation to the investigation and prosecution of the violation.

House Bill 5187 (S-1) would revise the definition of
"aggregate amount" in Public
Act 53. Currently, that term means any loss incurred by a victim, including the
value of any money, property or service lost, stolen, or rendered unrecoverable,
or any actual expenditure incurred to verify that a computer or a computer
program, system, or network was not altered, acquired, damaged, deleted,
disrupted, or destroyed. The bill specifies that losses incurred in separate
incidents pursuant to a scheme or course of conduct within any 12-month period
could be aggregated to determine the total value of the loss. The bill also would
refer to a victim or a "group of victims".

All of the bills would take effect 90 days after their enactment,
and are tie-barred
to Senate Bills 893, 894, and 1162. (Senate Bill 893 would amend the Revised
Judicature Act to allow the seizure of property used in crimes committed by use of
a computer. Senate Bill 894 would amend the Michigan Penal Code to revise
offenses and penalties for certain offenses involving use of a computer, and
provide for reimbursement of the costs of investigation and prosecution. Senate
Bill 1162 would amend the Code of Criminal Procedure to include the revised
penalties in the sentencing guidelines.) House Bill 5184 (S-1) also is tie-barred to
House Bills 5185, 5186, and 5187. House Bills 5185 (S-2), 5186 (S-1), and 5187
(S-1) are tie-barred to each other.

The bills would have an indeterminate fiscal impact on State and
local
government.

There are no data available to indicate how many people may be
convicted of
unlawful access to a computer. The new penalties would be incorporated into the
sentencing guidelines as a Class E crime for first offenses and a Class D crime for
second or subsequent offenses. Also, there are no data available to indicate how
many people may be convicted of using a computer to commit a crime. The new
penalties would range from Class C to Class G based on the maximum penalty for
the underlying crime. The minimum sentence ranges are shown in Table 3.

Table
3

Crime Class

Minimum Sentence Range
(Months)

From

To

C

0-11

62-114

D

0-6

43-76

E

0-3

24-38

F

0-3

17-30

G

0-3

7-23

Assuming that five offenders a year would be convicted of
unlawful access to a
computer for the first time and given the highest minimum sentence, the cost of
incarceration, assuming an average cost of $22,000 per year, would be $348,300.
Assuming that five offenders a year would be convicted of using a computer to
commit a crime for which the maximum penalty is 20 years or life and that they
would receive the highest minimum sentence, the cost of incarceration would be
$1,045,000, which could be in addition to other incarceration costs for the
underlying crime. Assuming that five offenders a year would be convicted of using
a computer to commit a crime for which the maximum penalty is at least one year
but not greater than two years, and that these offenders would receive the
maximum penalty, the cost would be $210,800, which could be in addition to
other incarceration costs for the underlying crime. A local sanction is appropriate
for offenders who score sentencing guideline recommendations where the lowest
minimum sentence is less than 12 months. Local units of government would incur
the cost of a local sanction and the costs vary among the counties.